Eric Turkewitz is the first of many plaintiffs' lawyers to jump on President Bush for complaining about "junk medical lawsuits" in last night's State of the Union (Jan. 28). Turkewitz complains that Bush didn't mention any studies (though State of the Union addresses are for policy proposals, not for discussions of the pros and cons of empirical evidence) and then says no such studies exist.
Which just isn't so, of course. As I note in my latest law review article, critiquing Thomas Geoghegan for thoughtlessly repeating the same trial-lawyer talking point,
The Harvard study in fact found that 28% of patients who suffered no medical error received compensation (as did 16% of patients who sued without any medical injury), and that only 60% of cases filed involved medical error. David M. Studdert, et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 NEW ENGLAND J. MED. 2024 (May 11, 2006).
Now, even leaving aside the simple fact that not every "medical error" is actionable medical malpractice, so the Harvard study was measuring the wrong thing, perhaps Turkewitz sincerely thinks that it is not a problem that the plaintiffs' lawyers' decision to bring a lawsuit is little better than a coin-flip in determining whether a doctor committed medical error, or that bringing a meritless suit against a doctor gives one a 28% chance of getting paid.* Policymakers and doctors likely would have a different opinion if they thought about it.
Note the typical anti-reform debating tactic of using "frivolous" in the narrowest of technical senses to minimize the existence of a problem, though politicians who support reform use the word "frivolous" in the broader colloquial sense.
Turkewitz is on stronger ground when he argues the federal government has no business interfering with the local issue of healthcare. I'm sympathetic to that: if Pennsylvania or New York would rather support their attorneys than their doctors, Texas would be happy to have them; let individual states choose their malpractice regimes and live with the consequences. With rare exceptions, one state's medical liability rules don't affect citizens of other states, so, unlike the case of product liability, there are federalism reasons to let states experiment. We're more likely to find the right balance between liability and safety and medical care when there are fifty different regimes with different results for others to model themselves after as aspirational or cautionary tales.
But I'm not seeing any Democrats (and frightfully few Republicans) arguing that the federal government should have less involvement in the provision of medical services, so I'm somewhat skeptical when the states-rights cry goes up from those who aren't objecting to Medicare, Medicaid, SCHIP, EMTALA, or the various proposed sprawling federally-funded-health-insurance plans. If the federal government is going to be the largest single spender on health-care costs, it is a natural consequence that that institution is going to want some say in contributions to health-care costs. And regulation of malpractice litigation is much less problematic to the issue of limited government (courts are part of government) than the regulation of personal health. Cf. John Edwards' proposal to mandate individuals to have personal check-ups.
*The clause originally read "perhaps Turkewitz sincerely thinks that the plaintiffs' lawyers' decision to bring a lawsuit is little better than a coin-flip in determining whether a doctor committed medical error, or that bringing a meritless suit against a doctor gives one a 28% chance of getting paid isn't a problem." The convoluted sentence made my meaning ambiguous, and I have corrected it.